Senate Res. No:364 and India

March 1, 2014, 7:00 pm

Within the month of February 2014, two groups of US Senators presented two different resolutions on Sri Lanka, one against and the other supporting SL. The US Senate is a small body consisting of just 100 members and for a division like this to emerge within such a body over a small Asian country is a very significant development indeed – something that all members of the UNHRC will have to take note of when casting their vote on the resolution to be presented against Sri Lanka by the Obama administration. The First resolution No:348 was presented to the Senate by a group of seven Senators headed by Republican Senator Richard Burr. This was a hostile resolution calling for among other things, the establishment of an independent international ‘accountability mechanism’ to evaluate reports of war crimes in Sri Lanka.

The second resolution No:364 presented on 27 February by a group of eleven Senators led by another Republican Senator James Inhofe countered the previous resolution by expressing support for Sri Lanka. This new resolution calls on the president of the US to develop a ‘well balanced policy towards Sri Lanka’ that reflects economic as well as security interests in addition to issues relating to human rights. It also called on the United States Government and the international community to assist the Government of Sri Lanka, with due regard to its sovereignty, stability, and security, in establishing domestic mechanisms to deal with any grievances arising from actions committed by both sides during and after the civil war in Sri Lanka. (Which means in effect that this resolution opposes the setting up of an international inquiry.) They have also suggested that the Government of Sri Lanka put in place a truth and reconciliation commission similar to the one adopted by South Africa to help heal the wounds of war.

This second resolution undoubtedly represents one of the biggest diplomatic turnarounds in Sri Lanka’s history. Even the powerful Indian lobby in the US has not been able to organize a counter like this, to the scathing resolution that was presented to the US House Representatives criticizing Narendra Modi and the BJP and asking the Indian people not to vote for the BJP at the May general elections this year. The resolution against Modi has been referred to the House Foreign Relations Committee and may quietly be dropped as Modi seems set to be India’s next prime minister. But the fact is that there was no group of US Congressmen who got together to counter the resolution against Modi. The fact that little Sri Lanka has been able to engineer something like this is a remarkable feat.

The mastermind behind this latest turnaround in the US Senate is supposed to be Basil Rajapaksa, ably assisted by his kinsman Jaliya Wickremasuriya. The Senator who tabled the pro-Sri Lanka resolution James Inhoffe was actually a signatory to the 2009 US Senate Foreign Relations Committee report on Sri Lanka which criticized the Obama administration’s attitude towards Sri Lanka. That 2009 report observed among other things that:

"Real peace will not come overnight to Sri Lanka and cannot be imposed from the outside."

"For their part, Tamil leaders have not yet made anticipated conciliatory gestures that might ease government concerns and foster a genuine dialogue."

"The political environment in Sri Lanka is not as black and white as many outside observers believe."

"U.S. policymakers have tended to underestimate Sri Lanka’s geo-strategic importance for American interests. Sri Lanka is located at the nexus of crucial maritime trading routes in the Indian Ocean connecting Europe and the Middle East to China and the rest of Asia."

"Communal tensions in Sri Lanka have the potential to undermine stability in India, particularly in the Indian state of Tamil Nadu, home to 60 million Tamils. All of these concerns should be part of our bilateral relationship."

"The United States cannot afford to ‘lose’ Sri Lanka. This does not mean changing the relationship overnight or ignoring the real concerns about Sri Lanka’s political and humanitarian record. It does mean, however, considering a new approach that increases U.S. leverage vis-a-vis Sri Lanka by expanding the number of tools at our disposal. A more multifaceted U.S. strategy would capitalize on the economic, trade, and security aspects of the relationship."

"U.S. strategy should also invest in Sinhalese parts of the country, instead of just focusing aid on the Tamil-dominated North and East."

Senator John Kerry was the Chairman of the Senate Foreign Relations Committee when this report was released. For the past several years, there has been immense disquiet within the American political establishment about the pig headed attitude displayed by the Obama administration towards Sri Lanka and Senate resolution No:364 is a reflection of that.

India’s dilemma

While Senate Res: No: 364 has shown the whole world, that there is no unanimity within the American political establishment with regard to the Obama government’s Sri Lanka policy, what of India? If one looks at the string of very public insults that India as a nation has had to suffer at the hands of the US govt. in recent years, one would think that they would show the middle finger to the US and vote with Sri Lanka as a way of showing the Americans that if they wanted Indian support, they should treat India as a friend, not as a coolie. In this context, the following incidents stand out. 1) In 2005, Narendra Modi, was forbidden from entering the USA on the grounds that he was a human rights violator. 2) In 2009, Abdul Kalam, India’s former President was body searched by American Airlines security personnel before he boarded a flight to the USA. 3) In the same year the Actor Shahrukh Khan was detained for two hours at a US airport. 4) In 2010, the Indian Ambassador to the USA Meera Shankar was body searched at an airport in Mississipi even after she revealed her identity and claimed diplomatic immunity. 5) In 2011, Abdul Kalam India’s former president was once again searched at the New York airport and even the shoes he was wearing and his jacket were taken away for examination.

Even more outrageously, 6) in September 2012, a US court tried to serve summons on Sonia Gandhi while she was receiving treatment at an American hospital, to face charges of protecting and rewarding the perpetrators of the anti-Sikh riots of 1984! Sonia escaped American ‘justice’ by saying that she did not receive the summons. It’s unlikely that she will ever set foot on US soil again. 7) Then on 19 November 2014, a bi-partisan resolution was presented in Congress which roundly criticised Narendra Modi and the BJP and asked the Indian public not to vote for the BJP at the forthcoming elections in May 2014. In January 2014, Sonia Gandhi was asked by the American court mentioned earlier to file answers to the charges against her. Since she was in India at the time, the USA was in effect claiming ‘universal jurisdiction’ over India which will enable American courts to hear cases against Indian citizens living in India. All this is without even mentioning the Devyani Khobragade body cavity search incident which grabbed international headlines. Over the past several years, the US govt. has not treated India like a regional superpower – the Indians have been treated instead like a regional doormat!

Modi and the IPKF commemoration

If India pusillanimously votes with the US against Sri Lanka at the March UNHRC sessions, just imagine the impact that this will have on India’s image in diplomatic circles. The sheepish excuse that they have had to vote with the USA due to ‘internal political compulsions’ will only make matters worse as the diplomatic community will see them as being weak within as well as without. Indeed, this writer holds the view that by trying to appease Tamil Nadu and voting against Sri Lanka, the weakness displayed by the Congress Party government to the whole of India would have made them lose more votes in the north than any they may have gained in Tamil Nadu. With each passing day, India’s international image is being fatally undermined. The attempt by the Tamil Nadu government to release the terrorists jailed for killing Rajiv Gandhi made it to the headlines around d the world. Such things are not going to do anything to enhance India’s image overseas. The Congress Party has a chance to prove to the world that the Indian government still has a backbone, if they vote with SL or at least abstain and refuse to vote with the US govt.

It has to be admitted that the Congress party government did react strongly to the Devyani Kobragade affair and that did boost their image both locally in India and overseas. But now if they meekly vote with the US against Sri Lanka whatever kudos they gained by standing up over the Khobragade affair will be completely dissipated. Besides, India is the only country in the world which is expected to vote with the Americans in a situation where the leader of its ruling party dares not enter the US for fear of arrest and the next potential ruling party leader cannot enter the US because he has been prohibited from doing so! The US has not given any concessions to Sonia Gandhi, Narendra Modi or even Devyani Khobragade, in exchange for Indian support against Sri Lanka in Geneva. The US govt. probably does not consider such concessions necessary because they can get their proxy Jayalalitha Jeyaram to bring the Indian central government by their ears to the feet of the Americans.

When Hillary Clinton visited Tamil Nadu in 2011, she was talking in terms of cooperation between the ‘government of Tamil Nadu’ and the ‘government of the United States’ as if the Indian central government did not exist. This situation will not change even if Narendra Modi becomes the next prime minister. Modi has the image of being a strongman in Gujarat but as prime minister he will be a pussycat on Jayalalitha’s lap. If Modi is really a strongman, the first thing he should do is to commemorate the over 1,500 Indian soldiers who laid down their lives fighting Tamil terrorists in Sri Lanka. In the past quarter of a century since the end of the Indian intervention in Sri Lanka, no Indian leader has dared even lay a wreath in memory of the Indian soldiers who laid down their lives in Sri Lanka fighting Tamil terrorists. If Modi becomes the first to do so, we will then know that India at last has a different kind of leader.

There is a school of thought that Sri Lanka should ‘win over’ the Indian government by fully implementing the 13th Amendment and thereby depriving the US of India’s vote. Dayan Jayatilleke is one of the main advocates of this strategy. There are several problems with this suggestion. Apart from the practical issues relating to the 13th Amendment itself, if the Indian central government was completely in control of things within their country as during the time of Nehru, this might have been an approach to consider. But today, the central government is only a puppet of the states. It’s not the Indian central government that has to be placated, but Tamil Nadu. So long as Tamil Nadu is dissatisfied, the Indian central government will also be dissatisfied. If Sri Lanka falls into this trap of trying to placate India, we will be stepping out onto a slippery slope from which there will be no return.

The hackneyed 13th Amendment

There are other technical issues with regard to the 13th Amendment that those who advocate implementing the 13th Amendment to keep the Indians happy, have not considered. It is these technical issues that has prevented the full implementation of the 13th Amendment for a quarter of a century. It is because of these issues that even presidents who openly offered to hand over the north and east to Prabhakaran for ten years without an election, never thought of fully implementing the 13th Amendment. Even in the view of such a president, giving the north and east to Prabhakaran on a platter for ten years was less damaging than implementing the 13th Amendment which would have rendered the whole country ungovernable. By giving Prabhakaran the north and east, you lose only a part of the country not all of it! The technical issues in the 13th Amendment relate mainly to land and police powers which can be summarized as follows:

* The central government has no power over land at all, according to the 13th Amendment. If the central government needs a piece of state land in a particular province, they can use this land only after ‘consulting’ the relevant provincial council which means that they have to mandatorily explain the need for this land to the provincial council and to justify their utilization of that particular piece of land for a particular purpose. This requirement applies even if the central government needs a piece of land for defence and national security. Can one envisage having to consult the northern PC to use a piece of land to set up a new army camp? Thus the 13th Amendment had given the provinces powers that even the states in India do not have. In India the central government has the power to take any piece of land it deems necessary for its purposes in any state without any restriction. Since mining comes under the Indian central government, if it is found that there is a large coal deposit under the Tamil Nadu chief minister’s official residence, the Indian central government can (at least in theory) kick the CM out of her house and start digging a coal mine right there.

*Though the central government has to consult a provincial council before utilizing a piece of state land, the PC does not have to consult the central government if they need to use a piece of state land. On the contrary, if a provincial council wants a piece of state land, the central government has to make the land available with no questions asked.

*If the president or the central government wants to give any state land within the province to any person or organization, they can do so only on the ‘advise’ of the provincial council. The central government cannot initiate a move to alienate state land within the province. If the central government wants to alienate land to individuals and organizations, they will have to request the provincial council to ‘advise them’ to alienate the land to the said individuals or organizations. If there is an uncooperative provincial council, the central government loses control over state land in that province.

*According to the 13th Amendment, it is the IGP who appoints DIGs for the provinces. But this has to be done with the ‘concurrence’ of the Chief Minister of the province. Where there is no agreement between the Inspector-General of Police and the Chief Minister, the matter will be referred to the President, who shall make the appointment but only after ‘consulting’ the chief minister. Either way it is the chief minister who has the primary say in appointing the provincial DIG. The purpose of ‘consulting’ is not to just notify. It necessitates the obtaining of the views of the chief minister.

*The nature, type and quantity of firearms and ammunition and other equipment for the provincial police forces shall be determined by the National Police Commission after consultation with the Provincial Police Commissions. Allowing the provincial administrations a say in determining what kind of weapons the provincial police force is going to use is sheer lunacy in Sri Lanka’s context.

*Members of the national police force shall ordinarily be in plain clothes in the provinces except when performing duties in respect of the maintenance or restoration of public order in that province. Thus, the only visible law enforcement authority in all provinces will be the provincial police force.

*The DIG under whom both the national and provincial police personnel in the province functions will be ‘responsible to and under the control’ of the chief minister of the province. We saw that in the appointment of this DIG, that if there is no agreement between the IGP and the chief minister, the matter will be directed to the president. Even if a strong willed president manages to override the objections of the chief minister and appoint the right man for the job, once the appointee goes to the province, he will be completely under the control of the chief minister and forced to obey his constitutionally mandated master.

*The Provincial Police Division shall be responsible for the preservation of public order within the Province and the prevention, detection and investigation of all offences except a limited number of offences such as offences against the State, the armed forces, public and judicial officers, parliamentarians, ministers and the like and offences relating to currency and public property, elections and international crimes. It should be noted that what comes under the national police are offences AGAINST the president, parliamentarians judicial officers and the like. Offences merely INVOLVING such individuals will fall under the purview of the provincial police forces. Thus the national police has jurisdiction over a limited number of offences and everything else falls under the purview of the provincial police forces.

*Any offence which may ordinarily be investigated by a provincial division may be investigated by the CID or any other unit of the national division only if the chief minister makes a request to that effect. If the IGP is of the opinion that an offence should be investigated by the CID in the public interest, he can direct the CID to take over a case only in consultation with the Chief Minister. What happens if the IGP wants an offence investigated by the CID and the attorney general is in agreement with him, but the chief minister does not want the CID involved? The IGP cannot override the chief minister. The 13th Amendment has not given the national police force any jurisdiction over cases where the chief minister or his cronies in the provincial administration are the offenders. In such cases, the chief minister and his cronies will be investigated by the provincial police force which takes orders from the chief minister himself!

*When deploying the national police force in a province in aid of the civil power, without declaring an emergency, the Sri Lankan president is bound to consult the chief minister of the province. But in India, Entry 2A of the of the Central Government powers list of the Seventh Schedule of the Indian constitution gives the centre the ability to deploy ANY armed force under the command of the central government (and not just the national police) in any state in aid of the civil power (meaning the governor of that state who is appointed by the central government) without the declaration of an emergency in that province.

Thus we see that the provinces in Sri Lanka have got more powers in relation to land and police than the states in India. A government that implements these provisions will no longer have a country to govern which is why it is inadvisable to implement the 13th Amendment to placate India especially in a situation where there is no guarantee that the demands emanating from Tamil Nadu will cease if the 13A is implemented. Instead of ceasing, what we will probably see is more demands being put forward in the belief that if a few kicks yielded up full implementation of 13A, a few more kicks will yield up Eelam itself! Besides, if the 13A is implemented, it will so weaken the Sri Lankan state that it will not be able to resist pressure coming from Tamil Nadu for the carving out of a separate state. So the cure being suggested is worse than the disease when one says that the 13A should be implemented to win India’s vote at the UNHRC. What kind of a country commits constitutional suicide to win a vote in a UN body?